5 N.H. 130 | Superior Court of New Hampshire | 1830
There are several reasons why the plaintiff should not have judgment on the last count in his declaration upon the facts stated, but we shall mention only one.
It is provided by statute in this state, that no action
Courts of equity decree a specific performance of parol contracts relating to the sale of lands, where there has been a part performance of the contract. But the ground of relief there, in such cases, is fraud. Sugden’s Law of Venders, 72 ; 1 Swanston, 172, Morphet v. Jones; 2 Strange, 783, Earl of Aylesford's case; 1 Johns, Ch. Rep. 131, Philips v. Thompson; and ibid, 273, Parkhurst v. Van Courtland; 2 Caines’ Cases, 87, Wetmore v. White; 7 Vesey, 341 Buckmaster v. Harrop.
It is said by Kent, C. J. in Jackson v. Pierce, 2 Johns. Rep. 223, that it seems never to have been decided in a court of law, that a part performance of a parol: agreement will take it out of the statute.
And doubts have been sometimes entertained, whether courts of equity have not gone rather too far on this subject. 3 Vesey, 712. 2 Schoales and Lefroy, 4 and 552.
The broad general language of the statute seems to us to be decisive on this point. There is in terms no exception. And it is a strong argument against admitting any exception, that in the statute, which provides that contracts for the sale of goods, in certain cases, shall be in writing, and which was passed upon the same day when the statute we have now under consideration was passed, excepts, in express terms, contracts which have been partly executed.
It has also been decided in the supreme court of Massachusetts, upon a statute in which the same language is used, that part performance of a parol agreement relat
We are therefore of opinion, that to sustain the fourth count in this case it would not have been enough to show an agreement between the parties, which had been performed on the part of the plaintiff, but it was essentially necessary to show an agreement in writing.
It remains to enquire then, whether, under the circumstances of this case, the plaintiff is entitled to recover upon the other counts, a compensation for what lie has done under the contract ?
A parol contract for the sale of lands is not declared by the statute to be void. It is only declared, that no action shall be maintained upon it. 15 Mass. Rep. 85, Davenport v. Mason; 6 East, 611.
And we are of opinion, that the plaintiff is not at liberty to treat the contract for the sale of the land in this case as void, unless the defendant has refused, or disabled himself, to perform it. If one man contracts with another to perform labor, and receive as a compensation the conveyance of a particular tract of land, although the contract to convey the land is not a proper foundation for an action, yet still common honesty and fair dealing require that he shall not be at liberty to refuse the land, and demand money, until the other party has refused to execute the contract. But we have no doubt, that in general, when a contract within the statute of frauds has been in pari executed by one party, there is a plain remedy for such party, to a certain extent, in a court of law, if the other party fraudulently refuse to execute the contract on his part. If money has been paid, it may be recovered back. If labor lias been performed, a compensation for it.may be recovered. These principles are recognized in the following cases. 1 Pick. 328, Kidder v. Hunt; 5 Mass. Rep. 133, Sherburne v. Fuller; 11 ditto, 342, Boyd v. Stone; 2 Car. & P. 91, Mavor v. Pyne; 7 Cowen, Burlingame v. Burlingame; 3 Johns. 85, Gillet v. Muynard; 13 ditto, 365.
Verdict set aside and a new trial granted.